IN THE MATTER OF: A.D.B., A Youth in Need of Care.
Submitted on Briefs: March 27, 2013.
District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN-09-74 Honorable Karen S. Townsend, Presiding Judge.
For Appellant Mother: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana
For Appellant Father: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana
For Appellant A.D.B.: Lisa Kauffman, Attorney at Law, Missoula, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Matthew Lowy, Deputy Missoula County Attorney, Missoula, Montana
LAURIE MCKINNON, Justice.
¶1 The District Court for the Fourth Judicial District, Missoula County, terminated the parental rights of A.D.B.'s Mother and Father. Mother, Father and A.D.B. now appeal that decision.
¶2 Mother raised two issues on appeal which we have restated as follows:
¶3 1. Did the Montana Department of Public Health and Human Services (DPHHS) make reasonable efforts to reunite Mother with A.D.B.?
¶4 2. Did the District Court err in concluding that Mother's drug addiction rendered her unfit to parent A.D.B. and that her condition was unlikely to change within a reasonable time?
¶5 Father raised three issues on appeal which we have restated as follows:
¶6 3. Did the District Court have jurisdiction to terminate Father's parental rights?
¶7 4. Did Father's attorney render ineffective assistance of counsel?
¶8 5. Did the District Court err in terminating Father's parental rights based upon his incarceration for mitigated deliberate homicide?
¶9 A.D.B. raises one additional issue which we have restated as follows:
¶10 6. Did the District Court correctly conclude that termination of Mother's and Father's parental rights was in A.D.B.'s best interest?
Factual and Procedural Background
¶11 A.D.B. was born in April 2009. Mother, who was 19 years old at the time of A.D.B.'s birth, has struggled with chemical dependency since she was 13 years old. On December 10, 2009, Mother was arrested for Driving Under the Influence while A.D.B. was in the vehicle with her. The next day, Father was arrested and charged with deliberate homicide. A.D.B. was removed from her parents' custody and placed with her maternal uncle.
¶12 On December 18, 2009, DPHHS filed a petition for temporary legal custody of A.D.B. The District Court appointed counsel for both parents and for A.D.B., and also appointed a guardian ad litem for A.D.B. At an adjudicatory hearing held on January 19, 2010, Mother did not contest that, based upon Mother's conduct, A.D.B. was a youth in need of care. Mother stipulated to the court granting DPHHS temporary legal custody of A.D.B. for six months. The court granted Father's request to continue the hearing as it related to him for an additional two weeks. At a subsequent hearing, Father also stipulated that A.D.B. was a youth in need of care as a consequence of Father's conduct. DPHHS established treatment plans for both Mother and Father, and the District Court determined that both treatment plans were reasonable and appropriate.
¶13 On June 21, 2010, DPHHS moved the District Court to extend temporary legal custody of A.D.B. for an additional six months. Although Mother objected to a six-month extension, she informed the court that she would not object to a three-month extension. Father asked for a postponement of the hearing until after his criminal trial.
¶14 Father was convicted of mitigated deliberate homicide on July 16, 2010. He was sentenced to 40 years in the Montana State Prison with no possibility of parole. On July 20, 2010, Father appeared at a hearing in this case and informed the court that he did not object to the extension of A.D.B.'s temporary legal custody with DPHHS for an additional six months.
¶15 Thereafter, Mother successfully completed her treatment plan. Thus, on November 8, 2010, the District Court dismissed her as a party to the proceedings. That same day, DPHHS filed a petition to terminate Father's parental rights to A.D.B. based upon Father's long-term incarceration for his conviction of mitigated deliberate homicide.
¶16 On December 7, 2010, Father filed a motion to dismiss DPHHS's petition to terminate his parental rights arguing that since A.D.B. had been successfully reunited with her Mother, A.D.B. was no longer a youth in need of care, and DPHHS had no authority to petition the court to terminate Father's parental rights. However, not long after Mother was dismissed from the youth-in-need-of-care proceedings, DPHHS received a referral that Mother had relapsed and was once again using drugs. On December 8, 2010, she tested positive for Methadone. Consequently, on December 21, 2010, DPHHS filed its "Renewed Petition for Immediate Protective Services, Adjudication as a Youth in Need of Care, and Temporary Legal Custody as a Consequence of the Mother's Conduct." Hence, the District Court awarded DPHHS emergency protective services over A.D.B. until the show cause hearing or further order of the court. In addition, because of the ongoing proceedings, DPHHS filed a notice of withdrawal of its petition to terminate Father's parental rights stating that ruling on the termination petition was unnecessary at this time. A.D.B. was placed with her maternal grandparents.
¶17 On January 6, 2011, DPHHS filed a petition to extend temporary legal custody of A.D.B. for six months. And, on January 26, 2011, DPHHS filed a motion with the court to approve a second treatment plan for Mother. At the May 4, 2011 dispositional hearing, both Mother and Father stipulated that temporary legal custody of A.D.B. should be transferred to DPHHS for six months. Hence, the District Court continued A.D.B.'s temporary custody with DPPHS until November 4, 2011, or further order of the court. The court also approved the second treatment plan for Mother.
¶18 On June 14, 2011, Mother tested positive for Opiates, Benzodiazepine, Methadone and Oxycodone. DPHHS moved to amend Mother's treatment plan to include attendance at an inpatient drug treatment program. DPHHS wanted Mother in an inpatient program because Mother had completed outpatient drug treatment twice and relapsed both times.
¶19 At a November 1, 2011 status hearing, the parties informed the court that they were still trying to get Mother placed in an inpatient treatment facility. However, on November 3, 2011, Mother overdosed on illegal drugs. She was found unconscious on the floor at her grandmother's home. Mother was transported to the hospital where she was stabilized and later released. As a result of this incident, Mother was charged with Criminal Possession of Dangerous Drugs, a felony, and Criminal Possession of Drug Paraphernalia, a misdemeanor. The following day, November 4, 2011, DPHHS filed a petition to extend its temporary legal custody of A.D.B. for an additional six months.
¶20 On December 6, 2011, the parties again appeared in the District Court. DPHHS advised the court of Mother's recent drug overdose and that Mother had been charged with felony possession of dangerous drugs from that incident. DPHHS petitioned for Termination of both Mother's and Father's parental rights on December 20, 2011.
¶21 Mother filed a motion to amend her treatment plan on December 27, 2011. She proposed in her motion that she apply for admission to Elkhorn Treatment Center in Boulder, Montana, and upon admission, she would attend and engage in chemical dependency treatment and successfully complete that treatment program. Elkhorn is a nine-month-long inpatient treatment program typically reserved for Department of Corrections' commitments. Mother would not be allowed to have A.D.B. with her while at Elkhorn. DPHHS did not object to Mother's motion, and the District Court issued an order to so amend the treatment plan.
¶22 On January 5, 2012, Mother appeared for an arraignment on the drug charges from November 2011. She was released on her own recognizance on the condition that she not use any drugs not prescribed by a physician. However, just two days later, law enforcement officers stopped a vehicle in which Mother was a passenger. After a consent search of the vehicle, officers found syringes and a spoon containing residue that tested positive for Morphine. A used syringe and cotton were also found in Mother's purse. Mother admitted to acquiring Dilaudid and shooting it up earlier that day.
¶23 Mother was transported to the Missoula County Detention Center. During a videotaped interview at the detention center, when officers left the interview room, Mother removed a pill bottle from one of her bags and placed it in the left side of her bra. She also placed a call on her cell phone and asked the individual on the other end of the line to save her $30 worth of black-tar heroin. She promised to meet up with this individual in 30 minutes. Needless to say, Mother was not released from custody. That same day, Mother's mother complained to law enforcement officers that Mother had stolen $2, 100 in jewelry from her home. Based on these incidents, Mother was charged on January 23, 2012, with Criminal Possession of Dangerous Drugs, a felony, Criminal Possession of Drug Paraphernalia, a misdemeanor, Theft, a felony, and Solicitation of Criminal Distribution of Dangerous Drugs—Narcotic or Opiate, a felony. On February 7, 2012, Mother entered pleas of guilty to all six of the criminal charges pending in the District Court.
¶24 The District Court held a hearing on the petition to terminate Mother's and Father's parental rights on February 15-17, 2012. After receiving testimony from various counselors and social workers who had worked with Mother over the past two years, along with testimony as to Father's long-term imprisonment, the District Court terminated both Mother's and Father's parental rights to A.D.B. The District Court entered detailed findings of fact and conclusions of law on March 1, 2012, wherein the court stated that "Mother has not complied with any of the tasks of her most recent treatment plan" and that although she could not comply with the task requiring inpatient treatment at Elkhorn, "she was able to comply with all of the other tasks, and complied with none of them." The court further stated that Mother "could have complied with other recommended inpatient drug treatment and chose not to do so."
¶25 Thus, the District Court determined that pursuant to § 41-3-609(1)(f), MCA, the court was permitted to terminate the parent-child relationship between A.D.B. and her Mother "for the Mother's failure to successfully complete her Court-ordered treatment plan and for the reason that her conduct or condition that renders her unfit . . . (her serious drug addiction and her unwillingness to engage in necessary treatment)" is unlikely to change within a reasonable time. In addition, the court determined that § 41-3-609(1)(f), MCA, permitted the court to terminate the parent-child relationship between A.D.B. and her Father "because the conduct or condition of the Father rendering him unfit (incarceration) is unlikely to change within a reasonable time."
¶26 Mother, Father, and A.D.B. all appeal the District Court's termination order.
Standard of Review
¶27 We review a district court's decision to terminate parental rights for an abuse of discretion. In re E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, ___ P.3d ___ (citing In re T.W.F., 2009 MT 207, ¶ 17, 351 Mont. 233, 210 P.3d 174). A district court abuses its discretion when it acts arbitrarily, without employment of conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice. E.Z.C., ¶ 19 (citing In re A.J.W., 2010 MT 42');"> 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012). In addition, we review a district court's findings of fact to determine whether they are clearly erroneous, and its conclusions of law to determine whether they are correct. E.Z.C., ¶ 19 (citing T.W.F., ¶ 17). A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. E.Z.C., ¶ 19 (citing T.W.F., ¶ 17).
¶28 Did DPHHS make reasonable efforts to reunite Mother with A.D.B.?
¶29 Mother contends that termination of the parent-child relationship just two months after Mother's treatment plan was amended to include a nine-month, inpatient treatment program violated good faith reunification efforts. Likewise, A.D.B.'s counsel argues that deeming a plan unsuccessful because of deficits known when the plan was developed and ordered violates the good faith requirement.
¶30 The State argues that DPHHS made every possible effort to reunite Mother with her daughter over the previous three years, but Mother persistently refused to participate in the level of treatment she needed and continued to engage in drug-addictive behavior. The State points out that it was Mother who moved to amend the treatment plan, not DPHHS, and Mother only did so after DPHHS filed its petition to terminate her parental rights. DPHHS did not object to Mother's motion to amend the treatment plan because Mother's DPHHS caseworker recognized that Mother was in desperate need of inpatient treatment as soon as possible. In fact, after Mother filed her motion to amend the treatment plan, Mother was arrested for more drug-related felony offenses to which she pled guilty. The State also points out that neither Mother nor counsel for A.D.B. argued that Mother's treatment plans were not reasonable and appropriate.
¶31 A parent's right to the care and custody of a child is a fundamental liberty interest which must be protected by fundamentally fair proceedings. E.Z.C., ¶ 21 (citing A.J.W., ¶ 15). Nevertheless, a court may terminate the parent-child legal relationship upon clear and convincing evidence that the parent has subjected the child to aggravated circumstances, "including but not limited to abandonment, torture, chronic abuse, or sexual abuse or ...